Linkbar

16 November 2011

Copyright and Censorship

The Competing Laws governing Copyright and Content

Copyright includes the right to publish; there’s no doubt about that — Section 14 of the Copyright Act, 1957, clearly grants copyright owners the exclusive right to publish works whose copyright they own, and to authorise others to do so. As such, any publication of a substantial part of a work protected by copyright, which publication is carried out neither by nor with the permission of its copyright owner, is likely to amount to copyright infringement.

Having the right to publish a work under copyright law though isn’t the same as actually being able to publish a work without having undesirable legal consequences ensue.

Copyright law is just one of the many laws which govern the publication of creative works. In fact, copyright law is limited to dealing with the publication of creative works in which copyright subsists — just a small fraction of all creative works. It does little more than enable one to identify and specify who owns the relevant copyright, who has the right to publish a protected work, and who has the right to profit from its publication.

The publication of creative works, however, needs to pass the test of legality under a variety of laws other than the Copyright Act. These laws include “procedural laws” such as, depending on the kind of work, the Press and Registration of Books Act, 1867, the Cinematograph Act, 1952, and, in the case of retail sales, the Legal Metrology Act, 2009. In addition to this, there exists an entire gamut of content laws with which one has to contend.

Content laws relating to creative works are laws which come into play upon publication, independently of whether or not the published work is protected by copyright. These laws deal with whether the substance of the works are legal, and not with who has the right to publish them. In other words, they apply to both copyrighted and unprotected works. Also, all content laws are not incorporated in one statute. On the contrary, there are over twenty different statutes which contain provisions dealing with the content of creative works, and in addition to this, various kinds of creative works may also be governed by Rules associated with statutes, case law, and by self-regulatory guidelines issued by professional bodies.

While content laws generally do not impact the right to publish a work under copyright law, publication could result in their being invoked. For example, if the copyright owner of an obscene work were to publish it, while the publication of the work would not fall foul of the provisions of copyright law, there is a high chance that, depending on the nature of the work, the publication would be against the provisions of a number of other laws including:

The Advertising Standards Council of India Guidelines (which have the force of law despite not being law).

Indian copyright jurisprudence has not gone into the issue of the tension between copyright and the freedom of expression in much depth — primarily, possibly, because the two are generally seen as different issues in the Indian context. Nonetheless, there is an increasing degree of awareness arising in regard to content issues, and in relation to what may and may not be published. With this rise, it is likely that there will be a corresponding increase in the friction between the laws governing content and copyright, possibly with one being used to subvert the other.

Pertinently, many content laws may lend themselves to camouflaged use given that they are extremely vague. For example, television programmes are required not to offend good taste or decency under Rule 6(1)(a) of the Cable Television Network Rules, 1994. “Good taste”, obviously, is neither defined nor susceptible to being defined, and as such, whether or not a programme conforms to this Rule is entirely subjective.

Thus, the laws governing copyright and content may find themselves not working in tandem — while copyright law may grant the right to publish creative works, content laws may penalise publication (or, at least, make it illegal). The result is that when restraining the publication of a creative work through the copyright route is not feasible, it may be possible to restrain publication through the creative application of content laws.

Credit

Author

Subscribe in a Reader

Archives

Art and Indian Copyright Law: A Statutory Reading

A look at how the Indian Copyright Act, 1957, as amended in 2012, interacts with art (other than films and sound recordings), and, in particular, with Indian art. The first part of this text comprises a feminist and post-colonial reading of the Indian copyright statute while later parts focus on interpreting the provisions of the statute in relation to art.

The Bollywood Amendments (2010-2012)

An examination of the provisions of the 2012 amendments to the 1957 Indian Copyright Act which affect the film and music industry. The paper takes into consideration the factual background in which the amendments were made and explores whether they are likely to realise their objectives.

"IN Content Law" is a personal blog which contains the views of its author, Nandita Saikia, alone unless otherwise explicitly stated. The author of the blog may have advised clients on subjects relating to those dealt with in this blog. However, the contents of this blog are not intended to reflect the opinion or position of any person (other than the author) unless otherwise explicitly stated.

The posts on this blog relate to copyright and content law from an Indian perspective. They are not professional advice, and should not be considered or construed as such. No action should be taken or omitted on the basis of the contents of this blog.

This blog neither creates an attorney-client relationship between the author and any visitor(s) or any other person(s), nor does it seek to do so. The material contained herein is solely for the purpose of academic discussion and is accessible on an as-is basis.

No representations or warranties are made as to accuracy, impartiality or fitness of the material on this blog for any use, and the author shall not be liable in any manner to any extent for the consequences of any action taken on the basis of any material herein. Further, no representations or warranties of any nature are made regarding any material which may be linked to from this blog, and the author shall not be responsible for the contents thereof.Revisions: The posts on this blog may be revised from time-to-time for editorial or other purposes without each revision being marked in the post itself.

Privacy: No comments made on this blog OR mail or documentation sent to the author by any person in connection with this blog (i.e. "Information") shall be treated as being private or confidential, with the exception of the eMail address of the sender. By sending / transmitting any Information directly to the author or by way of a blog comment, the sender authorises the author to use and/or reproduce it for ANY purpose she desires at any place or time. All senders / potential senders are requested to contact the author if they have any privacy concerns, preferably, before sending / transmitting any Information.